Jimenez v. State

• Decision Date: 13 September 2000
• Citation: 32 S.W.3d 233
• Parties: (Tex.Crim.App. 2000) JOHNNY SILVA JIMENEZ, Appellant v. THE STATE OF TEXAS NO. 1090-99
• Court: Texas Court of Criminal Appeals

Page 233

32 S.W.3d 233 (Tex.Crim.App. 2000)

JOHNNY SILVA JIMENEZ, Appellant v. THE STATE OF TEXAS

NO. 1090-99

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

September 13, 2000.

ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY

Before the court en banc.

Womack, J., delivered the opinion of the Court, in which Mansfield, Price, Holland, and Keasler, JJ., joined.

The question in this case is, what standard of harmless error applies to error in a court's charge that was not objected to, and that is claimed to violate a constitutional provision? We hold that the applicable standard is that provided by article 36.19 of the Code of Criminal Procedure: "the judgment shall not be reversed unless it appears from the record that the defendant has not had a fair and impartial trial."

The appellant, indicted for attempted capital murder, was found guilty of aggravated assault committed on September 11, 1995. The court's charge at punishment told the jury that the appellant "may earn time off the period of incarceration imposed through the award of good conduct time." This charge tracked article 37.07 section 4(a) of the Code of Criminal Procedure.¹ The appellant did not object to the charge. The jury assessed punishment of fifteen years' imprisonment.

On appeal the appellant presented the point that this charge was erroneous, since an award of good conduct time would not count toward his release on mandatory supervision because his offense is listed in Government Code section 508.149(a).² The First Court of Appeals agreed "that the charge on the accumulation of good-conduct time, as given in this case, was error." See Jimenez v. State, 992 S.W.2d 633, 638 (Tex.App.- Houston [1st Dist.] 1999).

The appellant argued in the court of appeals that the incorrect charge denied him due process of law and due course of law. The court of appeals agreed, but found that the error was harmless. It said:

We must determine, under article 36.19 of the Texas Code of Criminal Procedure, whether the error resulted in such harm that it requires reversal of the conviction. Because appellant did not object to the court's charge to the jury, it is appellant's burden on appeal to show the erroneous charge resulted in such egregious harm that he did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Cr. App. 1984).

Ibid. The court held that the appellant did not show such harm. Id. at 639.³

Both the appellant and the State petitioned for discretionary review. The appellant asks us to hold that the court of appeals was wrong to apply to a constitutional error the standard of harm in article 36.19 instead of the beyond-a-reasonable-doubt standard in Rule of Appellate Procedure 44.2(a).⁴ The State asks us to hold that the court of appeals erred in holding that the charge denied due process of law and due course of the law. We first take up the issue in the appellant's petition.

A party is not excused from the procedural requirements for objecting at trial merely because an error involves a constitutional right. "It has repeatedly been held that even constitutional guarantees can be waived by failing to object properly at trial."⁵

All but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong. Many constitutional rights fall into this category. When we say "that even constitutional guarantees can be waived by failure to object properly at trial," we mean that some, not all, constitutional rights may be forfeited. On the other hand, certain, relatively few, rights must be protected by the system's impartial representatives unless expressly waived by the party to whom they belong. Determining which category a right occupies will usually settle the question of procedural default in the context of a particular case.⁶

The appellant does not contend that the right in question was one that must be implemented unless he expressly waived it.

In particular, the requirements for objecting to the court's charge at trial were established by the enactment of articles 36.14 through 36.17 of the Code of Criminal Procedure.⁷

Standards for review of error in the court's charge were established by the enactment of article 36.19.⁸ As this court held in Almanza, article 36.19 established two standards of review for errors in the court's charge: one standard for errors that were objected to and another for those that were not objected to.

If an appellant did object to the error in the charge, the statutory standard of harmlessness for most erroneous charges is that "the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant";⁹ in other words, unless the appellant suffered "some harm."¹⁰ That statutory standard of review does not apply to some kinds of charge errors that were objected to. If the error was a violation of the federal constitution that did not amount to a structural defect, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.¹¹ That standard was the one the court of appeals applied in this case.¹²

But the "beyond-a-reasonable-doubt" standard for constitutional errors does not apply in this case because the error was not objected to. In Chapman v. California, the Supreme Court held that the courts of states are required to apply the "beyond-a-reasonable-doubt" standard to federal constitutional errors because:

Whether a conviction for crime should stand when a State has failed to accord federal constitutionally guaranteed rights is every bit as much of a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the formulation of the authoritative laws, rules, and remedies designed to protect people from infractions by the States of federally guaranteed rights. We have no hesitation in saying that the right of these petitioners not to be punished for exercising their Fifth and Fourteenth Amendment right to be silent--expressly created by the Federal Constitution itself--is a federal right which, in the absence of appropriate congressional action, it is our responsibility to protect by fashioning the necessary rule.¹³

But in order to invoke the protection of this federal rule in a state court, the appellant must have complied with the state court's procedural rule for preserving and presenting error. "'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.'"¹⁴ If the right is forfeitable, as most rights are, an appellant who did not comply with the rules for preserving and presenting error must rely on the forum's rules for consideration of unpreserved error.

Some jurisdictions refuse to consider unpreserved error.¹⁵ Most jurisdictions consider unpreserved error under rules for "plain error."¹⁶ The standards for plain error are different from those for preserved error. The standards for harm may be higher, and the burden of showing harm different.¹⁷ Even when the higher standards are met, the appellate court may have discretion whether to consider the error at all, extending review only to very serious errors.¹⁸

The traditional term in Texas' criminal law that corresponds to "plain error" is "fundamental error."¹⁹ Article 36.19 establishes the standard for fundamental error in the court's charge: "the judgment shall not be reversed unless it appears from the record that the defendant has not had a fair and impartial trial."²⁰ We have paraphrased this statutory standard in other terms at different times.²¹ This was the standard that the court of appeals applied in this case, and it was correct to do so.

If the appellant had objected to the court's charge, and if it were erroneous, an appellate court would have been required to apply the appropriate standard. The choice of standard would have depended on whether the error violated a right under the federal constitution, among other things.²² But since the appellant did not preserve those issues for appellate review, the appropriate standard is the statutory one for fundamental error in the charge.

Our holding that the court of appeals did use the correct standard makes moot the issue presented in the State's petition, which is dismissed.²³

The judgment of the court of appeals is affirmed.

Presiding Judge McCormick and Keller, J., filed concurring opinions .

Meyers and Johnson, JJ., dissent.

McCormick, P. J., delivered a concurring opinion.

I concur. As I understand it, the Court's opinion assumes without deciding that there was constitutional "error" in the court's charge and then decides what harm standard to apply to this unobjected-to constitutional error. The Court's opinion claims its decision "makes moot the issue presented in the State's" cross-petition for discretionary review which is whether there really was constitutional "error in the court's charge." The State essentially claims the issue of harm need not be addressed because there was no error.

The Court's opinion does not make moot the issue presented in the State's cross-petition for discretionary review. The Court's opinion merely postpones deciding this issue. The Court should first address the issue of constitutional error and decide there is no constitutional error. And, assuming but not deciding that there is constitutional error, the Court's opinion also errs on the question of the applicable harm standard.

The trial court submitted the statutorily mandated parole charge without any objection from appellant. This charge generally instructs a jury on parole matters...